Deirdre Phillips, Senior Consultant at Bowmans
On 9 October 2026, the Constitutional Court handed down judgment in GD v Minister of Home Affairs and Others, confirming a declaration of constitutional invalidity made by the Eastern Cape High Court in respect of section 7(7)(c) of the Divorce Act 70 of 1979 (Divorce Act).
Prior to the judgment, section 7(7)(c) effectively excluded pension interests from the scope of redistribution orders in marriages out of community of property and without accrual concluded on or after 1 November 1984. This position remained notwithstanding the Constitutional Court’s earlier decision in EB (born S) v ER (born B); KG v Minister of Home Affairs (EB), which removed the broader distinction between pre- and post-1984 marriages for purposes of redistribution orders under section 7(3) of the Divorce Act.
The case arose from divorce proceedings involving a marriage concluded out of community of property and without accrual in 2004. The applicant sought an order permitting the redistribution of a portion of her spouse’s pension interest and challenged the constitutionality of the statutory exclusion.
Key findings
The Constitutional Court held that section 7(7)(c) was unconstitutional because it irrationally differentiated between spouses in pre- and post-1984 marriages despite the Court’s earlier judgment in EB. The Court further held that the provision amounted to unfair discrimination, particularly against women, who are more likely to be disproportionately affected by unequal access to retirement savings following divorce.
The Court accordingly confirmed the declaration of invalidity and held that pension interests may be considered as part of the asset pool when a court exercises its redistribution jurisdiction.
Importantly, the Court recognised that pension interests already occupy a unique position in South African matrimonial law. Through the interaction of the Divorce Act and the and the Pension Funds Act 24 of 1956, pension interests may be taken into account in divorce proceedings and may, where a competent court order exists, be assigned to a non-member spouse. The constitutional defect lay not in that legislative framework, but in the fact that section 7(7)(c) excluded certain spouses from access to it solely because their marriages had been concluded after 1 November 1984.
The Court also limited the retrospective consequences of the declaration by providing that the order would not affect legal consequences arising from acts, omissions or facts existing before the order was made.
Implications for retirement funds
The judgment broadens the circumstances in which retirement funds may become involved in the implementation of divorce-related orders. Pension interests are now capable of forming part of the assets that may be considered by a court when granting a redistribution order in respect of marriages out of community of property and without accrual concluded on or after 1 November 1984.
Importantly, the judgment does not mean that pension interests will automatically be shared upon divorce. A court must first determine that a redistribution order is just and equitable in the particular circumstances of the case. The judgment merely expands the pool of assets that may be considered during that exercise.
From an administration perspective, retirement funds should note that the judgment does not create a new category of benefit or a new mechanism for payment. Existing principles governing the implementation of divorce orders and pension-interest allocations continue to apply. The practical effect of the judgment is that a greater number of redistribution orders may now affect members’ pension interests.
Retirement funds should therefore continue to scrutinise court orders carefully and ensure that any order presented for implementation clearly and unambiguously authorises the allocation of a portion of the member’s pension interest before payment is made.
Looking ahead
Pension interests frequently constitute one of the most significant assets accumulated during a marriage. The judgment is therefore likely to increase the prominence of retirement savings in divorce litigation involving marriages out of community of property and without accrual.
While the decision does not create an automatic entitlement to a share of a spouse’s pension interest, it removes a significant limitation on the circumstances in which pension interests may be considered when a court exercises its redistribution jurisdiction. The practical implications of the judgment will become clearer as courts begin applying the new framework in future cases.
For retirement funds, the significance of the judgment lies less in any change to fund administration and more in the expanded circumstances in which members’ pension interests may become the subject of judicial redistribution orders on divorce.
ENDS
